Opinion
No. CV07-4008029 S
August 7, 2008
MEMORANDUM OF DECISION Re Motion For Summary Judgment (#105)
Facts
On May 10, 2004, the plaintiffs, John and Joan Voris, sustained injuries in an automobile accident when their car was struck by another car operated by one Peter Molinaro. They claim the accident and their injuries were negligently caused by Molinaro. On that date, Mr. and Mrs. Voris were insured under an automobile liability policy from the defendant, Middlesex Assurance Company ("Middlesex"), which policy provided underinsured motorist coverage in the amount of $500,000.
¶ 1 of the Amended Complaint asserts the defendant Middlesex operated through its agent, Middle Oak Company, vis-a-vis the policy; yet, "H D Segur, Inc." is listed as the "agency" on the policy provided. Neither party has addressed this apparent anomaly and, thus, the court does not.
Plaintiffs reported the accident to the defendants on or about the date of the accident and, on or about May 1, 2006, they brought suit against Molinaro. Pretrial discovery in that case disclosed that, on the date of the accident, Molinaro's automobile policy with Allstate Insurance Company provided bodily injury coverage of $50,000. More than one year after suit against Molinaro was brought (specifically, on June 22, 2007), the plaintiffs informed the defendants of that litigation; on August 22, 2007, the defendants notified plaintiffs that any claim for underinsured motorist benefits was time-barred by the policy's three-year limitation period. The plaintiffs then filed this action. In its present formulation, the complaint asserts the defendants' conduct in refusing to honor the underinsured policy provisions constituted an anticipatory breach of the parties' agreement (First Count), that the defendants have a contractual obligation to provide the requested underinsured coverage (Second Count), and that the applicable policy provisions as well as Gen. Stat. § 38a-366(g)(1) — upon which the policy language is premised — are unconstitutional (Third Count).
Plaintiffs amended their complaint on April 2, 2008, to add the Third Count as here described.
This motion for summary judgment was filed by the defendants on the ground the claim for underinsured motorist coverage is time-barred and they have attached to their memorandum an affidavit, a certified copy of the policy, and a copy of the letter of June 22, 2007, to Middlesex, which letter provided notice of the intent to seek underinsured motorist protection. The plaintiffs have objected and have attached to their memorandum an affidavit from Mr. Voris. The defendants filed a reply memorandum and this court heard oral argument on May 12, 2008.
Application of Law to Facts
P.B. § 17-49 provides summary judgment shall be rendered if the pleadings, affidavits, and other proof submitted show there is no genuine issue of material fact and that judgment should therefore enter as a matter of law. The moving party has the burden of showing the absence of any genuine issue of material fact. Mazurek v. Great American Ins. Co., 284 Conn. 16, 26 (2007). To satisfy that burden, the movant must make a showing that it is quite clear what the truth is and, once having met that burden, the opposing party must present evidence demonstrating the existence of some disputed factual issue. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11 (2008). Mere assertions of the existence of a disputed fact are not sufficient without the presentment of evidence to support that claim, Id.; P.B. § 17-45. In adjudicating a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Mazurek, supra, at 26. Summary judgment may be granted where the claim is time-barred. Doty v. Mucci, 238 Conn. 800, 806 (1996). See also Burns v. Hartford Hospital, 192 Conn. 451, 460 (1984) (summary judgment against a severely injured plaintiff granted because time-barred by C.G.S. § 52-584).
C.G.S. § 38a-336(g)(1) explicitly provides "no insurance company doing business in this state may limit the time within which any suit may be brought against it . . . on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of the accident."
The statute also provides for the tolling of the limitation period upon the insured's compliance with certain specifically stated requirements. However, the plaintiffs' failure to respond to a Request for Admission regarding written notice of the intent to seek underinsured benefits operates as a judicial admission that no such written notice was provided any time before June 22, 2007.
An Endorsement to Part C of the policy ("Uninsured/Underinsured Motorists Supplement — Connecticut") provides that, subject to the tolling provision of § 38a-336(g)(1), "Under Part C, all suits must be brought within three years of the date of accident."
John Voris responds to this argument in stating, in his affidavit, that, on the day he gave notice of the accident to Middlesex (May 10, 2004), a Middlesex employee told him that that notice "constituted the correct notification procedure under my policy and preserved all of my rights under my policy including a claim for underinsured motorist benefits" (¶ 8) and that nobody "ever informed me that my insurance policy contained time limitations with regard to any claim for proceeds under my automobile insurance policy," that he was "unaware of any such limitations" and "categorically denied ever having agreed to such limitations." ¶ 9. The succinct response is that the plaintiff has offered no evidence he timely notified Middlesex of a claim under the underinsured provision of his policy. The judicial admission created by his failure to respond to the defendants' Request for Admissions is that he did not provide any written notice with regard to any underinsured claim prior to June 22, 2007, and thus there is neither compliance with the policy provision nor with § 38a-336(g)(1). The plaintiff is bound by the terms of the policy he accepted and under which he paid premiums.
The plaintiffs claim genuine issues of material fact exist regarding whether the notice they gave Middlesex of the accident having occurred tolled the limitations period under the policy and whether the defendants misled the plaintiffs. The notice of the accident having occurred was by way of a telephone call (Voris affidavit, ¶ 8). The written notice of an underinsured motorist claim was on June 22, 2007; that date was outside the period of limitations under both the policy and the statute, the accident having occurred on May 10, 2004. Mr. Voris' argument Middlesex should not have rejected his claim because that written notice was merely "a few days beyond the alleged three year period of limitations" (Affidavit, ¶ 12) is unpersuasive. The notice — which was approximately six (6) weeks beyond the limitations period — was late. The claim that Mr. Voris was misled somehow by Middlesex presumably rests upon Mr. Voris' claim in ¶ 8 that the Middlesex employee to whom he spoke on or about May 10, 2004, led him to believe his notice "was the correct notification procedure under the policy" and that it preserved his right to make an underinsured motorist claim. The oral notice of that date was notice of an accident — not of an underinsured claim which was not advanced until more than three (3) years later and was a claim Mr. Voris could not have known he would want to assert until he learned of the Molinaro policy limits as a result of discovery conducted during the pendency of that suit. ¶ 8 is entirely vague; it speaks not to what that employee said but to what the plaintiff was "led to believe." To successfully oppose a motion for summary judgment, the nonmovant must recite "specific facts . . . which contradict those stated in the movant's affidavits and documents." Jones v. H.N.S. Management Co., 92 Conn.App. 223, 229 (2005). "Expressions of the nonmovant's feelings and beliefs regarding the facts in issue are not sufficient." Id. Additionally, the question whether Mr. Voris was reasonable in his belief neither creates a special defense nor raises a genuine issue of "material" fact; in view of the wording of the policy and the statutory language, there is not the need for a fact-finder to determine whether Mr. Voris was misled by anything he was told on May 11, 2004. It is not a "real" issue. It is not a fact which will make a difference in the result of the case. See e.g., Buell Industries v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002). "The applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings." (Emphasis added.) New Haven Savings Bank v. La Place, 66 Conn.App. 1, 15 (2001).
Plaintiffs assert the policy in question does not comply with the statute in that it does not provide them a three-year period within which to commence arbitration. The court also views this argument as failing to raise a genuine issue of material fact since the plaintiffs have never chosen to pursue arbitration nor is it a triable issue of fact because not raised by the pleadings. In fact, Endorsement MM-01-04 (03-98) deleted the provision of the Personal Auto Policy which permitted arbitration of underinsured claims. It specifically provides for underinsured suits to be brought within three years of the accident and requires written notification of the underinsured claim within the same period. Id. at C of Certified Policy. Furthermore, the language of Part C of the policy (Uninsured/Underinsured Motorist Coverage) tracks the language of the statute. The provision of the policy that calls for underinsured suits to be brought "within three years" of the date of accident (as opposed to a period "not less than three years") is not inconsistent with the statute since, in this instance, "within three years" of May 10, 2004, denotes the same limitations period as "not less than" three years from May 10, 2004. See e.g. Tracy v. Allstate Ins. Co., 70 Conn.App. 726 (2002) (establishing the limitations period was "within three years" of the date of the accident" [at 730]) and see also Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 337 (2003), aff'd. per curiam, 268 Conn. 281 (2004). Both the statutory language and the decisional law of this state make clear the six-year contract period applies only in those instances in which the policy requires suit be brought within a period less than three years or when, as in Gohel, supra, the policy limitations period is inconsistent with the statutory period of limitations.
Nor are the cases cited by plaintiffs on point even had these plaintiffs chosen arbitration. Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474 (1995) involved a policy containing a two-year limitation period on underinsured claims; the plaintiff there had pursued arbitration and, because the claim there advanced was saved by the tolling provisions of § 38a-336, it was subject to the six-year limitation period generally applicable to contract actions. Id. at 482. In Gohel v. Allstate Ins. Co., 61 Conn.App. 806 (2001), the Court found applicable the contract limitations period of six years because the insurance policy provided for a two-year period within which to assert a legal action (contrary to § 38a-336[g]) and because the passage of P.A. 93-77 did not effect a substitution of a three-year limitation period in the policy but merely created a statute that rendered inoperative policy provisions inconsistent with the statutory requirements.
The plaintiffs' claim that the "certified" copy of the policy is not authenticated (and presumably therefore cannot be considered by the court in the adjudication of this motion) is without merit. The defendants have attached to their motion an affidavit by Kim Grieb, the claims adjuster for Middlesex who is personally handling this suit. She represented therein that the policy attached to the motion before the court "is a certified copy of the policy as it existed for the Voris.'" ¶ 5. Her signature is subscribed and sworn to before Stephen M. Guarini, Jr., Notary Public. With regard to the authentication of documents in support of this motion, see New Haven v. Pantani, 89 Conn.App. 675, 678 (2005) ("Practice Book § [17-45] . . . contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . ."); See also Conn. Code of Evidence, § 9-1(a).
There remain the constitutional arguments asserted in the Third Count of the Amended Complaint — specifically, that C.G.S. § 38a-336(g)(1) is a constitutionally invalid delegation of legislative power (¶ 15) and is additionally violative of the Equal Protection Clause of the U.S. Constitution (¶ 16). "[A] party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt." Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 754 (1997). "Every presumption is to be given in favor of the constitutionality of the statute." Id. Further, in recognition of the heavy burden borne by the challenger, this state's Supreme Court has said, "The scope of [a court's] review as to whether an enactment serves a public purpose is limited. [W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect." (Internal quotation marks omitted.) Kinney v. State, 285 Conn. 700, 710 (2008).
It is not so as plaintiffs argue — that § 38a-336(g)(1) is constitutionally infirm because a delegation of legislative power to private parties (specifically, private insurance companies) which does not serve a public purpose. Opposing memorandum, at 5-6. The plaintiffs recognize that, prior to the enactment of the statute, an insurance company could restrict the notice period to two years and, if more than two years from the date of the accident were required to exhaust the tortfeasor's insurance, a claimant could not seek further protection — under the underinsured motorist provision of his/her policy. Contrary to the claim that the statute gave to insurance carriers "the power to reduce the statute of limitations" for UM claims (Plaintiffs' memorandum, at 6), the legislature clipped the wings of insurance companies whose policies provided for two-year limitations periods when it required that policy terms provide the same period as the statute. The effect was not — as claimed — to reduce the period so as to achieve "only a private interest" and create a "public harm." Id. In Gohel v. Allstate Ins. Co., 61 Conn.App. 806 (2001) (in which the defendant carrier argued in support of its then limitations period of two years), the Supreme Court concluded an insurer could not enforce a contractual limitation period less than that provided by statute and, thus, Allstate's policy was rendered unenforceable by operation of law. Id. at 820-21. After the enactment of C.G.S. § 38a-336(g)(1), the right of carriers to restrict the notice period to two years (and thereby to restrict the number of UM claims which could be prosecuted) was to increase ( not decrease) the period of time within which claimants were required to give notice of an underinsured motorist claim and to increase the number of such claims advanced. That is the public purpose served by the statute. See also Aetna Life Casualty Co. v. Braccidiferro, 34 Conn.App. 833 (1994) in which our Appellate Court stated, "The enactment of `[s]tatutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups.' . . ." Id. at 845, citing to Ecker v. West Hartford, 205 Conn. 219, 239 (1987).
See p. 6 of plaintiffs' memorandum wherein it is stated, "Absent the unlawful delegation, the Plaintiffs' notice was two years and three hundred and twenty three days early" — as opposed to being forty-two days late.
It reversed the trial court's granting of Allstate's motion for summary judgment and found applicable the six-year contract limitations period because P.A. 93-77 did not alter insurance contracts or create a statute with retrospective application but instead rendered the policy's limitations period unenforceable. 61 Conn.App., at 820. The certified policy here afforded the plaintiffs three years from the accident date within which to assert a UM claim.
The reality is that these plaintiffs' claim for UM coverage under their policy was time-barred whether the limitations period was two years or three years given that there was no notice of a UM claim until June 22, 2007, when the accident date was May 10, 2004.
The claim that this statute violates the Equal Protection Clause of the fourteenth amendment of our federal constitution must also fail. That clause "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313, 320 (1985). Under a rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." 473 U.S., at 440. The automobile liability insurance business is extensively regulated (see e.g., Wilson v. Security Ins. Co., 213 Conn. 532, 539 (1990), citing to Simonette v. Great American Ins. Co., 165 Conn. 466, 473 (1973). The Connecticut Appellate Court has found that a fair reading of § 38a-336(g)(1) discloses that the statute represents uniform legislation affecting the entire insurance industry and its consumers and that the incidental effect of benefitting an individual or a class did not render the act unconstitutional. Braccidiferro, supra, 34 Conn.App., at 845. The plaintiffs offer no evidence and argue only generalities in support of this claim. To their argument that the statute created an "arbitrary and irrational class" of plaintiffs (to include these plaintiffs) who have been deprived of asserting a "legitimate claim" (Opp. Memorandum, at 8), the response must be that, since all consumers who have purchased an automobile liability policy providing underinsured motorist protection are afforded the increased protection of not having to give notice of a UM claim until three years following the date of accident, all members of that consumer class are treated alike. The claim fails.
For the above stated reasons, the defendants' Motion for Summary Judgment is granted; the objection is overruled.